- The Washington Times - Wednesday, December 21, 2011

DENVER — Colorado Gov. John Hickenlooper announced Wednesday that he would appeal a budget-busting court ruling on school finance to the state Supreme Court.

The Democratic governor’s decision came as no surprise, given the stakes involved in Lobato v. Colorado. Denver District Court Judge Sheila Rappaport ruled Dec. 9 that the state’s K-12 funding system violated the constitution and that “increased funding will be required,” with estimates from one study calling for an additional $2 billion to $4 billion per year.

The state already spends $3.2 billion, or 45 percent of its $7 billion general fund, on K-12 education annually.

“The judge´s decision provided little practical guidance on how the state should fund a ‘thorough and uniform´ system of public education,” said Mr. Hickenlooper in a statement. “Moreover, while the judge focused on the inadequacy of state funding, she did not reconcile this issue with other very relevant provisions of the constitution, including the Taxpayer’s Bill of Rights, the Gallagher Amendment and Amendment 23.”

All three of those amendments were approved by the voters through the initiative process. The Taxpayer’s Bill of Rights requires voters to approve any tax increases, while the Gallagher Amendment had the effect of reducing property-tax revenues, which had provided the majority of school funding. Amendment 23 requires K-12 funding to keep pace with inflation.

The combined measures have restricted the legislature’s flexibility in making budget decisions, but the judge said in her 189-page opinion that she was not required to “harmonize” her ruling with other constitutional provisions.

The governor took a swipe at the state’s judicial branch by saying that there are “more appropriate venues” for a budget debate.

“We look forward to a swift decision in this case so the people of Colorado and their elected representatives can participate in the school funding conversation,” Mr. Hickenlooper said.

The Colorado Education Association, the state’s largest teachers union, said it would continue its efforts to stop the appeal. The union is soliciting signatures for a letter to the governor and attorney general urging them to enforce the Lobato decision, arguing that “our children have already waited far too long for a school-funding system that makes it possible for every child to succeed.”

“As Colorado taxpayers and public education supporters, we ask you to stop wasting our tax dollars defending an indefensible school-funding system,” the letter states.

The Lobato lawsuit was filed in 2005 by parents and students from the rural San Luis Valley, but other school districts have since joined the case. They argue that the current funding system violates the state constitution by failing to provide a “thorough and uniform” education for K-12 students.

Joshua Dunn, professor at the University of Colorado at Colorado Springs, called the Lobato case part of the “litigation industry” that has pushed similar school-finance lawsuits in other states.

“They basically make the same arguments, regardless of what the state constitution actually says, and you have state court judges saying the same thing from state to state to state. And that’s what’s happening here,” said Mr. Dunn in a podcast interview with the Independence Institute in Golden.

What makes the Lobato case different is the judge’s decision to focus on only one part of the constitution, he said.

“I’ve seen decisions where the judges obviously played fast and loose with the constitutional text,” Mr. Dunn said. “I’ve never actually seen a decision where the judge said they could disregard inconvenient portions of the constitutional text.”